50 PROCTOR | July 2015
Court of Appeal judgments
1-31 May 2015
Civil appeals
Wolverson v Todman; Wolverson v Lisle &
Hooper & Ors [2015] QCA 74, 1 May 2015
Application for Leave s118 DCA Civil, General
Civil Appeal – Limitation of Actions – where the
appellant lodged an application and appeal
against an order of the District Court dismissing
two applications for an extension of the limitation
period under s31(2) of the Limitation of Actions
Act 1974 in respect of separate proceedings for
personal injury in the District Court – where the
appellant claimed damages for negligence and/
or breach of contract against the respondent –
where the negligence and/or breach of contract
arose in misdiagnosing the appellant’s medical
condition as multiple sclerosis, treating her for
such a condition, failing to diagnose properly
her condition as one caused by a Chiari Type 1
malfunction, ignoring or misinterpreting MRI
results which depicted the condition and failing
to treat her actual condition appropriately –
where, in a separate proceeding, the appellant
also sued the first, second, third, fourth and
fifth respondents and claimed damages against
each of them for negligence and/or breach
of contract arising out of an alleged failure to
diagnose a Chiari Type 1 malformation which
was depicted on her MRI scans – whether the
application and appeal against the order of the
District Court should be allowed to extend the
limitation period against the respondent in the
application, and, the first respondent, second
respondent, third respondent, fourth respondent
and fifth respondent in the appeal – where the
criticisms made of the process by which the
learned primary judge reached the conclusion
on causal link are valid – where it was reached
by a process which was defective in that it
proceeded on erroneous footings, firstly, that
unless there is medical opinion evidence which
puts the likelihood of a causal link as probable,
a finding of a causal link could not be made,
and, secondly, that an expression of possibility
of a causal link in a medical opinion would
necessarily be insufficient for a finding of a causal
link (notwithstanding that the finding of such a
link may be open on the totality of the relevant
evidence); and it failed to have regard to aspects
of the medical opinion evidence in context which
are apt to indicate a likelihood of a causal link
higher than mere possibility – when an approach
consistent with Fernandez [1975] 2 NSWLR 190
is taken, the conclusion appropriately reached is
that there is a sufficiency of evidence available to
Ms Wolverson, if led at trial and uncontradicted,
from which factual findings as to the cause of
her symptoms, the reasonable foreseeability
that they might be alleviated by the surgery she
underwent in 2009 and the effect of that surgery
on her symptoms could be made as would
establish the causal link required for a cause of
action – where taken with the other matters for
which his Honour considered there was sufficient
evidence, the causal link would complete the
elements of a cause of action for recovery
of damages on the basis that Ms Wolverson
endured symptoms over a long period as a result
of a persistent misdiagnosis of her symptoms
as those of multiple sclerosis, and a recurrent
failure to diagnose and recommend treatment
for the Chiari 1 malformation – where at the time
that legal aid was sought in 2010, Ms Wolverson
knew that it was important that an independent
radiologist be engaged to express an opinion
about what was observable on the MRI scans
that had previously been taken – where the
decision to defer the radiological opinion for
which funding had been approved was one in
which Ms Wolverson participated – where in
circumstances where, to her knowledge, the
opinion was required for a proceeding against the
radiologists and funding for the opinion had been
secured, judged objectively, it was not reasonable
for her to defer obtaining it – where the learned
primary judge was correct to conclude that Ms
Wolverson had not taken all reasonable steps to
ascertain the causal link by 31 July 2012.
In Appeal No.4576 of 2014: Application granted.
Appeal allowed. Limitation period extended with
procedural orders. Costs.
In Appeal No.4577 of 2014: Appeal dismissed
with costs.
Ballandis v Swebbs & Anor [2015] QCA 76,
5 May 2015
General Civil Appeal – Workers’ Compensation
– where the appellant’s work required him to
work at a number of locations – where the
appellant travelled to work with other employees
in a vehicle owned by the employer – where the
appellant was a passenger in the vehicle travelling
home from work when the vehicle was involved
in an accident – where the appellant suffered a
broken nose and exacerbated an earlier rib injury,
not caused by the accident – where the primary
judge held that because the claim was under s35
of the Workers’ Compensation and Rehabilitation
Act 2003 (Qld), the Civil Liability Act 2003
(Qld) applied to the assessment of damages –
whether s35 of the Workers’ Compensation and
Rehabilitation Act 2003 (Qld) applied – where the
learned primary judge found that Mr Ballandis
was on the journey home from a place of
employment, and that his employment was not a
significant factor in his being injured – where there
was a body of compelling evidence supporting
the learned primary judge’s conclusion that at the
relevant time Mr Ballandis had finished work, left
his place of employment and was returning home
– where Mr Ballandis was not working when he
sustained the injury.
Appeal dismissed with costs.
Rintoul v State of Queensland & Ors [2015]
QCA 79, 7 May 2015
General Civil Appeal – Discrimination – where
the appellant filed a complaint of discrimination
under the Anti-Discrimination Act 1991 (Qld)
in the Queensland Civil and Administrative
Tribunal – where the tribunal member made a
self-executing order requiring the appellant to
file and serve further particulars by 4pm on
31 March 2014, her application to be dismissed
in the event of non-compliance, without further
order – where the appellant’s solicitors wrote
to the tribunal on 31 March 2014 seeking an
extension of time – where on 1 April 2014 the
tribunal member vacated her previous orders
and directed that the further particulars be
filed and served by 4 April 2014 – where the
respondents made an application seeking a
reference to the president of the tribunal on the
question of law as to whether the proceeding
had been dismissed on 31 March 2014 –
where the president found that the appellant’s
application had been dismissed at 4pm on
31 March 2014 – whether the tribunal member
had the power under s61(c) of the Queensland
Civil and Administrative Tribunal Act 2009 (Qld)
to waive the appellant’s non-compliance with
the order – whether the appellant’s proceedings
were finally dismissed on 31 March 2014 –
where the tribunal president was clearly correct
in concluding that neither of the possible ways
of reviving proceedings which he identified was
open – where the president was not referred
to the tribunal’s powers to extend time and to
waive compliance with procedural requirements
contained in s61 of the Queensland Civil and
Administrative Tribunal Act 2009 (Qld), which
also require consideration in this context
– where in FAI General Insurance Co Ltd v
Southern Cross Exploration NL, the High
Court was concerned with a New South Wales
Supreme Court rule which gave the court the
power to extend any time fixed by a judgment
or order after the time had expired and
whether or not the application for the extension
was made before or after its expiry – where
the High Court held that the rule conferred
jurisdiction to extend time, notwithstanding
that a self-executing order for dismissal of the
proceedings had taken effect – where s61 is
a provision of precisely that kind and ought
to be construed in the same way – where the
tribunal member, then, had power to waive the
appellant’s non-compliance with her orders,
as she did by vacating them and setting a new
timeline – where the proceeding was not finally
and irretrievably dismissed on 31 March 2014;
it was reinstated by the further orders of 1 April
– where, however, when the court explored
this interpretation of the provision with counsel
for the respondents, a new tack was taken:
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